Where's the Proof? Just a Bad Judge

Marshall always led the other courts in the number of cases disposed of each year, a coveted statistic. Yet the manner in which he achieved this primacy was inimical to the justice system. He continually led his fellow judges in the number of recusals; that is, disqualification for bias, which left him fewer cases to dispose of. He also ran a "rocket docket" in which he issued a standard pretrial order that drastically cut the time for certain activities such as discovery that must occur prior to the trial. He also made all of his pretrial rulings, including motions for summary judgment, from the bench at the hearing. He refused to take matters under advisement, even in the most complex cases. His inclination to shoot from the hip rather than to carefully analyze issues resulted in Marshall being the most reversed judge in the courthouse. Because rulings by a trial court come to the court of appeals with the presumption of correctness, they are seldom overturned.

Lawyers who represent appellants, those who appeal from trial court judgments, have statistics akin to baseball batting averages, .300--three reversals out of 10 appeals in civil cases--is considered top drawer. Reversal of Marshall's rulings in recent years, however, reached levels around 50 percent. Losing in the trial court and having to take an appeal, even when reversal is likely, is not a desirable result for most litigants. Unless the appeal qualifies for accelerated treatment, which few do, the final outcome will be delayed for at least one year and possibly for considerably longer. If the appellant is a plaintiff, no certain recovery will be had until the final outcome, although the judgment may be enforced pending appeal if a bond is not posted. If the appellant is the defendant, he must post a bond to avoid enforcement of the judgment in the meantime, and the uncertainty of a contingent liability continues. All in all, John Marshall was a friend to appellants' lawyers. He generated more business and increased their batting averages. The lawyers in the trial court, those who strive for favorable or at least certain results in a reasonable time, and their clients suffered at Marshall's hands for too long. By the 2000 election, there were many members of the Bar and public other than Fred Baron who were tired of Marshall's conduct and were ready for him to go.

This analysis is further supported by the fact that Baron, like most plaintiffs' lawyers, is a Democrat, and made no secret of his party affiliation. Marshall, as Korosec's article stated, has been a lifelong Republican. There are numerous defense lawyers, who are generally Republicans, who have not been bashful about making campaign contributions to Dallas judges and bringing other influence to bear. Marshall's rulings adverse to Baron with regard to the witness coaching issue were favorable in the long run to the defense bar. If Marshall had not alienated so many lawyers and their clients, on both sides of the docket, he surely would have found sufficient friends and funds to blunt any unilateral attempt of Baron to oust him.

While I firmly believe Marshall was a bad judge, and whatever his successor's faults might be (and I am unaware of any), Dallas County is immensely better off with her, none of this is to say Marshall was or is a bad man. Most of his career as a judge he sincerely believed he was doing justice and the right thing. He has embraced causes many would consider worthy. Environmentalists doubtless think he's an ally. Once he enjoined a hunt club from conducting shooting matches using live pigeons, and he initially enjoined the city of Dallas from cutting down trees in Tenison Park to expand the golf course in violation of the deed restrictions. The problem is that a judge is not, in our system, an advocate. He is an umpire, and he is supposed to apply rules of law, not whims. With John Marshall, the roles of referee and advocate became hopelessly confused and proved to be his undoing.